Mason v. Missouri Pac. Ry. Co.

• Decision Date: 11 April 1887
• Parties: JOSEPH MASON, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

25 Mo.App. 473

JOSEPH MASON, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Moberly Court of Common Pleas. HON. G. H. BURCKHARTT Judge.

Affirmed.

The case and facts are stated in the opinion.

W. A MARTIN, for the appellant.

I. The petition does not state a cause of action. It alleges the pen was unsafe, and that defendant knew it, but it nowhere alleges that the defects were unknown to plaintiff.

II. The court erred in overruling the demurrer to evidence, since it showed no legal liability against defendant.

III. The court erred in refusing the declarations of law asked by defendant. Defendant is not liable as a common carrier in this case; in fact, is not liable at all until the cattle are in its cars. In cases like this, if plaintiff knew of the defect, he cannot recover. Railroad v. Hawkins, 18 Mich. 427; Botts v. Railroad, 21 Wis. 80. The defendant had not received the cattle; they were in the possession of the plaintiff when the injury occurred, and no liability, as carrier, existed, and, in order to recover, plaintiff must show that he is not at fault, and negligence on the part of the defendant. 2 Rorer on Railroads, 1279. Plaintiff, by using the pen, knowing it was insecure, assumed the risk of his cattle being hurt thereby.

IV. Appellant had never received the cattle; they had not been delivered for shipment. 2 Rorer on Railroads, 1279. Defendant is not a common carrier of live stock at common law. 2 Rorer on Railroads, 1296. Hence, had a right to restrict its liability by contract especially to require shippers to load and unload their stock. 2 Rorer on Railroads, 1300; 1 Rorer on Railroads, 642; 86 Mo. 104; 18 Mich. 427; 21 Wis. 80; Poles v. Railroad, 16 N.Y. 481; Railroad v. Snier, 60 Ill. 295; 2 Rorer on Railroads, 1301, 1302; Railroad v. McDonaugh, 21 Mich. 165; 2 Rorer on Railroads, 1307; Clark v. Railroad, 64 Mo. 440. And the declarations of law, asked by the defendant, should have been given by the court. We submit the case should be reversed.

HOLLIS & WILEY, for the respondent.

I. It is as much the duty of defendant to provide safe pens for receiving live stock for shipment, as it is to provide a safe car to ship it in, or a safe depot for other freight. The only difference in the liability of a common carrier of animals, and that of a carrier of inanimate property, is, that the carrier does not absolutely warrant live freight against the consequences of its own vitality--as dying from fright, etc. There is no difference in the rule, that the defendant cannot contract against its own negligence. Gray v. Packet Co., 64 Mo. 47.

II. In the construction of stock pens, and in affording the means of transportation, the carrier should be held to that degree of diligence that a prudent man would exercise in such matters. Railroad v. Hedges [Ky. Ct. App.] 13 Am. Law Reg. 145; Hutch. Carriers, 88; Willoughby v. Horridge, 2 Am. Law Reg. [O. S.] 61. Shearm. & Redf. on Negl., sect. 447; Lewis, Adm'r, v. Railroad, 59 Mo. 495; Howenstein v. Railroad, 55 Mo. 33.

III. Reception of hogs in pen of company is equivalent to an obligation to forward them without delay. Pruitt v. Railroad, 62 Mo. 527; Wood's Brown on Carriers, sect. 87, p. 157; Hutch. Carriers, p. 68, sects. 89, 90, 91. Stock was delivered at the usual place for receiving such freight, and at the time and place ordered by agent of defendant. This is delivery. 2 Redfield on Railways [5 Ed.] p. 53, sect. 174. And it makes no difference whether any bill or any entry in the books of the company is made. Ib.; Hutch. Carriers, sect. 97, p. 74; sect. 99, p. 76.

IV. The fact that the owner accompanies the goods, to keep an eye upon them, will not excuse the carrier. Ib.; Hutch. Carriers, sect. 100, p. 76; Lawson on Cont. Carriers, sect. 23, p. 22, and cases therein cited. Where, by contract, owner took the risk of damage " in loading, unloading, conveyance and otherwise" --bottom of car dropped out, company held liable. Ib., sect. 185, pp. 252-3; sect. 208, p. 266. Owner's contract to load and take care of stock makes no difference. Railroad v. Hedges, supra.; 13 Am. Law. Reg. 148. The company could only exonerate itself, when owner goes with stock to take care of it, by showing that the injury occurred by reason of some inattention to the duties so undertaken. Lawson on Cont. Carriers, sect. 23, p. 22, and cases therein cited.

V. Plaintiff's knowledge of defective condition of pens cannot bar his right of recovery. If so, all the defendant need do is to advertise to the world that its stock pens, depots, platforms, road-bed and rolling stock are all in a dilapidated and unsafe condition, bring it to the people's knowledge and escape all liability for injuries caused thereby. Smite v. St. Joseph, 45 Mo. 449.

W. A. MARTIN, in reply.

I. Railroad corporations are creatures of the statute. There is no provision of the statute requiring them to furnish pens to put live stock in, while waiting shipment. The fact that plaintiff knew the pen was out of repair, leaves him to act at his peril.

II. If there is anything for the shipper to do before the freight is ready to be carried, there is no delivery. 2 Rorer on Railroads, 1279.

III. Plaintiff is, at least, guilty of contributory negligence. If he could, by diligence, have prevented the injury, he cannot recover (86 Mo. 104), and, in using the pens without objection, he assumed the risk of damage.

ELLISON J.

The plaintiff brought his action against the defendant as a common carrier, the following being the material portions of the petition in the cause:

" That defendant, as such common carrier, contracts and undertakes to transport live stock from said city of Moberly to said city of Chicago, and, for the purpose of transporting live stock, as aforesaid, it is, and was, at the dates hereinafter mentioned, the duty of defendant to provide, at said city of Moberly, suitable stock pens for the purpose of holding, receiving and containing live stock while waiting for, and being loaded on, the cars of defendant. Plaintiff states that, on the seventeenth day of September, 1883, he contracted with the defendant, through its agent, at the city of Moberly, aforesaid, for the shipment of eighty-two head of fat cattle from said city of Moberly to the city of Chicago aforesaid; that the defendant, through its agent as aforesaid, directed plaintiff to bring his cattle on afternoon of said seventeenth day of September, 1883, and put them into defendant's stock pens, which were pointed out to plaintiff by the agent of defendant; plaintiff, in pursuance of his contract, and in accordance with the directions of defendant, by its agent, as aforesaid, drove his eighty-two head of fat cattle into the stock pens of defendant, so pointed out by defendant's agent.

" Plaintiff avers that the stock pens were not suitable for holding and containing live stock, but that said pens were decayed, weak, and rotten, in the posts and planks, and such condition was known by defendant, or might have been known, by the use of ordinary diligence, and, by reason of said pens being in such decayed, weak, and rotten condition, plaintiff's cattle broke out of the same, and, becoming excited, ran and scattered over a great scope of the surrounding country, which caused plaintiff to employ hands, for the purpose of getting said stock back to the defendant's road."

The answer was a general denial.

Defendant objected to any evidence under the petition, for the reason that it did not state facts sufficient to constitute a cause of action. This objection was overruled. Defendant, at the close of plaintiff's case, presented a demurrer to the evidence, which was, likewise, overruled.

The material portion of the plaintiff's testimony was as follows:

" On the seventeenth day of September, 1883, I applied to the agent of defendant, and made arrangements to ship eighty-two head of fat cattle, from Moberly, Missouri, to Chicago, Illinois; he told me to bring them in that evening, and I did so; he showed me where to put the cattle to load them; it was in the Wabash pens; I put the cattle in the pens; it filled the pens pretty full, and they became scared, and, in their crowding around, they got against one side of the pen, and the side fell over; the posts were

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